United States v. Hassan A. Grace , 142 F. App'x 934 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3122
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Hassan A. Grace, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 7, 2005
Filed: July 13, 2005
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Before MORRIS SHEPARD ARNOLD, FAGG, SMITH, Circuit Judges.
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PER CURIAM.
Hassan A. Grace pleaded guilty to being a felon in possession of a firearm.
Invoking Blakely v. Washington, 123 S. Ct. 2531 (2004), Grace objected to the
presentence report's recommendation of a four-level increase for using the firearm in
connection with another felony offense. See U.S.S.G. § 2K2.1(b)(5). The district
court* rejected Grace's objection, imposed the four-level increase, and sentenced
Grace to the statutory maximum sentence of 120 months under the mandatory
guidelines scheme. Anticipating the Supreme Court’s impending decision in United
*
The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
States v. Booker, 125 S. Ct. 738 (2005), the district court also took the precaution of
imposing an alternative 120-month sentence assuming the guidelines were
unconstitutional. Grace appeals his sentence, and we affirm.
Relying on the issue preserved below, Grace contends the district court
violated his Sixth Amendment rights by enhancing his sentence based on facts not
proven to a jury beyond a reasonable doubt. We disagree. The factual allegations
contained in the presentence report show Grace was gambling when a dispute over
the money erupted. Grace then pulled out a firearm, fired several shots at one of the
gamesters as he fled the scene, and pistol-whipped two others when they tried to calm
the situation. Grace does not contend in this appeal that the facts recited in the
presentence report do not support the four-level enhancement, and having failed to
object to the factual allegations, Grace has admitted the facts supporting the
enhancement for the purposes of the Supreme Court's decision in Booker. See United
States v. McCully, 407 F.3d 931, 933 (8th Cir. 2005). Thus, the sentence did not
violate Grace's Sixth Amendment rights.
Grace also claims the district court imposed an unlawful alternative sentence
because the “[s]entencing [g]uidelines have been held to be constitutional in a long
line of cases.” Booker invalidated the guidelines to the extent they were applied in
a mandatory manner, 125 S. Ct. at 764, however, and held that although district courts
are no longer bound to apply them, they must be consulted and taken into account
when sentencing, id. at 767. Thus, the district court committed Booker error by
sentencing Grace under the theory the guidelines were completely unconstitutional.
Nevertheless, we need not remand for resentencing because the error was harmless.
United States v. Thompson, 403 F.3d 533, 535 (8th Cir. 2005). "[I]n cases not
involving a Sixth Amendment violation, whether resentencing is warranted or
whether it will instead be sufficient to review a sentence for reasonableness may
depend upon application of the harmless-error doctrine", Booker, 125 S. Ct. at 769,
and "any error . . . that does not affect substantial rights [of the defendant] must be
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disregarded," Fed. R. Crim. P. 52(a). "[I]n most cases [this] means [the error] must
have affected the outcome of the district court proceeding." United States v. Olano,
507 U.S. 725, 734 (1993). Here, there is no grave doubt that the district court’s
failure to consider the guidelines affected Grace’s ultimate sentence. United States
v. Barnett, No. 04-3213, 2005 WL 1268831, at *3 (8th Cir. May 31, 2005). The
district court rebuffed defense counsel's request for a sentence "at the lower end of
the guidelines of 77,” imposed a 120-month sentence under mandatory guidelines,
and then announced it would sentence Grace to the 120-month statutory maximum
sentence regardless of whether the guidelines were mandatory. Given this record, we
have no grave doubt that the district court would have imposed the same sentence
under an advisory guidelines system. See id. at *4.
Finally, having reviewed Grace's sentence for reasonableness in light of the
factors set forth in 18 U.S.C. § 3553(a), we conclude the district court's sentence
reasonably reflects the seriousness of the criminal conduct in this case.
We affirm Grace's sentence.
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